§ 2.711 Evidence.

(a) General. Every party to a proceeding has the right to present
oral or documentary evidence and rebuttal evidence and to conduct, in
accordance with an approved cross-examination plan that contains the
information specified in paragraph (c) of this section, any cross-examination
required for full and true disclosure of the facts.

(b) Testimony. The parties shall submit direct testimony of
witnesses in written form, unless otherwise ordered by the presiding
officer on the basis of objections presented. In any proceeding in
which advance written testimony is to be used, each party shall serve
copies of its proposed written testimony on every other party at least
fifteen (15) days in advance of the session of the hearing at which its
testimony is to be presented. The presiding officer may permit the
introduction of written testimony not so served, either with the
consent of all parties present or after they have had a reasonable
opportunity to examine it. Written testimony must be incorporated into
the transcript of the record as if read or, in the discretion of the
presiding officer, may be offered and admitted in evidence as an
exhibit.

(c) Cross-examination. (1) The presiding officer shall require a
party seeking an opportunity to cross-examine to request permission to
do so in accordance with a schedule established by the presiding
officer. A request to conduct cross-examination must be accompanied by
a cross-examination plan containing the following information:

(i) A brief description of the issue or issues on which cross-examination
will be conducted;

(ii) The objective to be achieved by cross-examination; and

(iii) The proposed line of questions that may logically lead to
achieving the objective of the cross-examination.

(2) The cross-examination plan may be submitted only to the
presiding officer and must be kept by the presiding officer in
confidence until issuance of the initial decision on the issue being
litigated. The presiding officer shall then provide each cross-examination
plan to the Commission's Secretary for inclusion in the
official record of the proceeding.

(d) Non-applicability to subpart B proceedings. Paragraphs (b) and
(c) of this section do not apply to proceedings initiated under subpart
B of this part for modification, suspension, or revocation of a license
or to proceedings for imposition of a civil penalty, unless otherwise
directed by the presiding officer.

(e) Admissibility. Only relevant, material, and reliable evidence
which is not unduly repetitious will be admitted. Immaterial or
irrelevant parts of an admissible document will be segregated and
excluded so far as is practicable.

(f) Objections. An objection to evidence must briefly state the
grounds of objection. The transcript must include the objection, the
grounds, and the ruling. Exception to an adverse ruling is preserved
without notation on-the-record.

(g) Offer of proof. An offer of proof, made in connection with an
objection to a ruling of the presiding officer excluding or rejecting
proffered oral testimony, must consist of a statement of the substance
of the proffered evidence. If the excluded evidence is in written form,
a copy must be marked for identification. Rejected exhibits, adequately
marked for identification, must be retained in the record.

(h) Exhibits. A written exhibit will not be received in evidence
unless the original and two copies are offered and a copy is furnished
to each party, or the parties have been previously furnished with
copies or the presiding officer directs otherwise. The presiding
officer may permit a party to replace with a true copy an original
document admitted in evidence.

(i) Official record. An official record of a government agency or
entry in an official record may be evidenced by an official publication
or by a copy attested by the officer having legal custody of the record
and accompanied by a certificate of his custody.

(j) Official notice. (1) The Commission or the presiding officer
may take official notice of any fact of which a court of the United
States may take judicial notice or of any technical or scientific fact
within the knowledge of the Commission as an expert body. Each fact
officially noticed under this paragraph must be specified in the record
with sufficient particularity to advise the parties of the matters
which have been noticed or brought to the attention of the parties
before final decision and each party adversely affected by the decision
shall be given opportunity to controvert the fact.

(2) If a decision is stated to rest in whole or in part on official
notice of a fact which the parties have not had a prior opportunity to
controvert, a party may controvert the fact by filing an appeal from an
initial decision or a petition for reconsideration of a final decision.
The appeal must clearly and concisely set forth the information relied
upon to controvert the fact.